WILLIAMS v. LUCIANATELLI

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Supreme Court, Appellate Division, Fourth Department, New York.

Paul R. WILLIAMS, Plaintiff-Appellant, v. Vincent S. LUCIANATELLI, Defendant-Respondent

Decided: March 31, 1999

PRESENT:  HAYES, J.P., WISNER, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Stephanie Ann Palmer, of counsel, Louis T. Brindisi & Anthony A. Murad, Utica, for plaintiff-appellant. Brandon R. King, of counsel, Sugarman, Wallace, Manheim & Schoenwald, Syracuse, for defendant-respondent.

 Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102(d).   In opposition to the motion, plaintiff raised a question of fact whether he sustained a fractured sternum in the automobile accident (cf., Eisen v. Walter & Samuels, 215 A.D.2d 149, 150, 626 N.Y.S.2d 109).   Plaintiff submitted the affidavit of his treating physician, who opined that plaintiff had sustained a fractured sternum, and the records of plaintiff's emergency room treatment, which also indicate that diagnosis.   The report of the X ray taken in the emergency room indicates a “questionable non-displaced fracture of the xiphoid process”.   Although a radiologist who reviewed subsequent X rays concluded that plaintiff had not sustained a fracture and a physician who examined plaintiff on behalf of defendant concurred in that diagnosis, conflicting expert opinions may not be resolved on a motion for summary judgment (see, Bitici v. New York City Tr. Auth., 245 A.D.2d 157, 666 N.Y.S.2d 188;  Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208, 210, 651 N.Y.S.2d 518).

Order unanimously reversed on the law without costs, motion denied and complaint reinstated.

MEMORANDUM: